Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this motion. Papers Numbered Order to Show Cause and Affidavits Annexed 1 Affirmation/Affidavits in Opposition 2 Replying Affidavits 3 Filed Papers 4-6 DECISION AND ORDER Petitioner, Cliff Properties Inc. commenced this holdover proceeding against the Respondents, seeking possession of the premises located at 44 Cliff Street, Yonkers New York. The predicate notices and petition alleged Respondents were violating the lease in that Respondents caused damage to the unit, failed to keep the unit clean and exceeded occupancy limitations in violation of paragraph 7 of the parties’ lease rider, as well as Yonkers City Code §58-21 (A) and the Emergency Tenant Protection Act. Petitioner sought leave to conduct discovery, to challenge the Respondent’s hardship declaration and to set the matter for a default hearing. Respondent opposed the application and alleged that Petitioner’s contentions do not establish that Respondent is infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others. The filing of a hardship declaration automatically stays the proceedings to January 15, 2022. The statute provides “[a] motion may be made by the petitioner, attesting to a good faith belief that the respondent has not experienced a hardship, with notice to the respondent and the court shall grant a hearing to determine whether to find the respondent’s hardship claim invalid.” L 2021, ch. 417, Part C, Subpart A, Sec. 10. Accordingly, the court must determine whether Petitioner attested to a good faith belief that Respondents have not experienced a hardship. The Order to Show Cause is supported by an affidavit from Petitioner’s managing member, John Tiratsuyan, who swears he is familiar with the facts and circumstances of this proceeding. Mr. Tiratsuyan professed a belief that Respondents are not suffering a financial hardship in that the Department of Social Services ceased making payments on Respondents’ behalf and as Respondents did not submit an to the Emergency Rental Assistance Program (ERAP). Counsel for Respondent Gonzalez asserted only that the hardship declaration was made in good faith. “[T]he relevant statute only requires a petitioner to make a motion and attest to a good faith belief that a respondent has not experienced a hardship. If this is done, the court ‘shall’ grant a hearing. This is unequivocal. Directive that the court must follow once the motion and good faith elements are met.” Malaczynski v. Wittmann, 2021 NY Slip. Op. 21296 (Civ. Ct, Queens Co, 2021). The Petitioner has met its burden in this regard and as such this branch of the motion which sought to restore the matter for a hearing on this issue is granted. Petitioner argued the documents and records of Respondent Gonzalez’ income prior to and during the COVID-19 covered period, records of Ms. Gonzalez’ liquid assets and eligibility and/or current enrollment in governmental assistance benefits of any form are in the exclusive custody and control of the Respondents. Petitioner accordingly seeks leave to conduct discovery. In summary proceedings, discovery is not available as of right. Leave of court is required to avoid delay and preserve the summary nature of the proceedings. CPLR §408; Matter of Shore, 109 A.D. 2d 842 (2d Dep’t 1985). The movant must demonstrate an ample need for the sought-after disclosure and must demonstrate that discovery will not delay the proceedings. Glusak v, Kishman, 7/1/80 N.Y.L.J. 12, col. 1 [App. Term 2d Dep't]. Petitioner alleged that the documents sought which include Respondent’s income prior to and during the COVID-19 covered period, records of Respondent’s liquid assets and eligibility and or current enrollment in governmental assistance benefits of any form would be in the exclusive custody and control of the Respondents. There is no dispute that prior to CEEFPA, Respondent claimed financial hardship pursuant to the Tenant Safe Harbor Act (TSHA). In determining whether a tenant or lawful occupant suffered a financial hardship during the COVID-19 covered period, the court shall consider, among other relevant factors: i. The tenant’s or lawful occupant’s income prior to the COVID-19 covered period; ii. The tenant’s or lawful occupant’s income during the COVID-19 covered period; iii. The tenant or lawful occupant’s liquid assets; and iv. The tenant’s or lawful occupant’s eligibility for and receipt of cash assistance, supplemental nutritional assistance program, supplemental security income, the New York State disability program, the home energy assistance program, or unemployment insurance or benefits under state or federal law. There is no dispute that the discovery sought is in the Respondent’s possession. The Court deems this a sufficient ample need on the part of Petitioner. Further, the hearing will proceed more efficiently with this information. This branch of the Petitioner’s motion is accordingly granted and the Respondent is directed to respond to the discovery demands. That branch of Petitioner’s application which sought to restore the matter to the court’s calendar on the allegations of nuisance is denied. The legislation provides “[i]f the petitioner establishes that the tenant intentionally caused significant damage to the property or persistently and unreasonably engaged in such behavior…the proceeding may continue pursuant to article 7 of the real property actions and proceedings law and this act.” §7(4). However, “[a] mere allegation of the behavior by the petitioner or an agent of the petitioner alleging such behavior shall not be sufficient evidence to establish that the tenant has engaged in such behavior.” §7 (3). Petitioner submitted the affidavit from John Tiratsuyan and a series of photographs without any foundation. Petitioner’s motion failed to establish that Respondents intentionally caused damage to the property or persistently and unreasonably engaged in such behavior. Rather, it is a mere allegation of the behavior by the Petitioner which, by the plain language of the legislation, is insufficient. Finally, with respect to that branch of the motion which sought to schedule a default hearing, same is granted. The default hearing against Respondents Alexander Thomas Vega and Melissa Weismantel will be held on February 24, 2022 at 2:00 P.M. in Part IV prior to the hardship hearing. Appearances are required. Petitioner is directed to notify the Respondents of the date, time and location of this hearing and file an Affidavit of Service with the court The foregoing constitutes the Decision and Order of the Court. Dated: January 3, 2022
